Disgust and The Value of Multiple Reasons

I am reading Martha Nussbaum's book from Disgust to Humanity: Sexual Orientation and Constitutional Law, which might be seen as an offshoot of an earlier longer work that dealt with the overall subject of disgust in various contexts. Read that book too and recall it was pretty interesting, if a much longer and deeper analysis of the question.  This volume is part of a collection that includes various constitutional issues discussed in quick packages, including guns and interrogations (to name two I read).  It was written a few years ago, so DOMA is still good law and under ten states have SSM, not including California any more. 

Prof. Nussbaum argues that disgust is a problematic emotion that leads to irrational actions and policies.  In a limited fashion, when direct physical disgust such as of noxious odors is involved, it can be a suitable guide. Even here, it is not a purely natural emotion, but one motivated by culture. I sometimes imagine, e.g., how offensive people would find walking around in days without modern day sanitation and so forth. Bluntly put, even the best sorts must have smelled pretty bad without daily showers or the like. Nonetheless, people accepted it as nothing out of the ordinary.

But, more "constructive" cases, such as disgust for homosexuals (or let's say the overweight or generally those deemed unattractive) is truly problematic. Emotions can provide useful means toward justice. Anger, e.g., is appropriate when a wrong is committed. Humans have emotions and are not just machines that just process things purely rationally. Emotions however can mislead, especially when they result in the horror that is disgust. Disgust makes it unpalatable to be in the same room or even within smelling distance of things. It takes a lot to spend even a small amount of time in a smelly bathroom.

When this is the motivation or a major aspect involved when dealing with human beings, the troubling results is apparent. The human on some level does not seem quite human, but a disgusting thing. Thus, an important aspect in Nussbaum's mind is empathy -- a means to see that on some basic level that others are not "other" but are equal. Things that disgust make this harder. There is a visceral dislike and inability to reasonably see connections. See, e.g., Bowers v. Hardwick or same sex marriage -- the indicia of marriage is there clearly enough in a same sex couple, but somehow there is supposedly some difference. The difference, however, seems to bring in many different sex couples as well. The need for empathy here also shows the basic error when there was some horror that President Obama -- among other things -- argued that empathy was is part of judging.

But, considering others, stepping in their shoes, is necessary to judge. How to be a juror trying a case without that? It is not the same thing as "sympathy," though that can be important in the law at times. Anyway, a key difference between the two? Disgust. As is sometimes the case, Prof. Nussbaum's specific focus appears to have clouded to some degree her response to another aspect of the problem. That is, she argues that male fear of "bodily penetrations and vulnerability" is a central reason why homosexuality disgusts -- there does seem to be a main focus on male homosexuality here, historically lesbian behavior often not even addressed (though it was in various cases).

And, thus, does not think the argument that discrimination in this area is a matter of sex discrimination quite works, though realizes that it addresses some of what is going on. This is so even though there is a formalistic logic to things: people are discriminated against for sexual desires or actions for the "wrong sex." As a proponent of the argument, Andrew Koppelman, notes in an article cited in book, however, there are many things wrong here. Sexual discrimination still occurs even if it is not the only thing:

So many things are wrong with laws that discriminate against gay people that it is hard to know where to begin. They intrude on citizens' privacy. They enforce indefensible beliefs about sexual morality. They give the state's imprimatur to a theology, and a dubious one at that. They interfere with matters in which the law has no competence and that are none of the state's business. They oppress a long-suffering minority. Their enforcement typically involves cruelty and hypocrisy. They also discriminate on the basis of sex, and they depend on and reinforce the subordination of women.

And, even take what she brings up. The concern is not "penetration" alone. Women can be penetrated, right? That is what happens in "normal" sex. Also, though it might be a problem, it often is not a problem if women penetrate the man in various ways. As Prof. Nussbaum notes, bodily fluids alone is not a problem for people equally. There are a lot of germs in the mouth, but kissing between men/women is readily accepted. The most homophobic guy is likely to still enjoy oral sex if a woman does it. The sex of the person doing the act is important here. Many homophobes also have anal sex, again, it has to be the 'right' male/female pattern. The male is vulnerable when a male "invades" his body. A male performing oral on another male disgusts though even here some think it inappropriate even if they are asked to perform oral on a woman. There seems to be a specific sex based dynamic going here, even as to disgust.

Note as well Dale Carpenter, who is generally supportive of gay rights (and is gay), though accepts limited exemptions such as the infamous bakery case. Let's go back a couple years to comments he made in response to the 9th Cir. ruling on the Prop. 8 case:

I also noted that it would be hard to draw the line, as the Ninth Circuit panel did in Perry v. Brown. The opinion explicitly limits its holding to California, where full rights and then marriage itself was given to same-sex couples but then marriage was retracted. I see no principled minimalist reason to justify this limitation. Perhaps there’s no rational-basis for granting full rights but not the dignitary status of marriage, because granting the full rights surrenders the core for refusing marriage (procreation and responsible child-rearing). But it seems only judicial fiat further confines the decision only to states where the word marriage was given and then withdrawn. The effort to cabin the case to California, as opposed to the other civil-union states is the most unsatisfying part of the decision. That’s why I called it “judicial minisculism.” I’ve also said repeatedly in these electrons that I think the Perry litigation is likely a loser that may set back the cause. Reinhardt’s opinion seems to be an effort at harm reduction so that even a loss in the Supreme Court will be on narrow grounds. We’ll see, alas.

I don't quite know why it is "unsatisfying" for the Court here to limit itself to what the case was specifically about. This push for activism especially given the cautious nature of the USSC these days is strange to me. There is a certain "give me a break" flavor to this apparent confusion. To belabor a point I have made in various places the last few years. Yes, ultimately, there is no great reason in the long term to draw the line at California. But, like DOMA, it was a particularly blatant case in certain respects. The comment suggests why -- there was a certain gratuitous nature to it. Carpenter isn't quite Cassandra here either. He also did not find the sex equality argument -- which some find basically obvious and wonder why it isn't used more -- convincing either:

It was hardly mentioned in the main attack on the same-sex-only sodomy law in Lawrence v. Texas. Its main problems, very briefly, are that (1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ”real differences” between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple). To the extent courts care about sexist legislative purposes, it’s not obviously clear that the traditional definition of marriage is designed to reinforce the legal subordination of men to women. The law today makes spouses legally equal, regardless of sex. It’s a debate that won’t end, and I recognize others may reasonably disagree.

The sex equality argument actually won out at the intermediate level in state court. Also, Lawrence did not ultimately rely on equal protection at all, though it was discussed as an important aspect of the situation. Plus, Justice O'Connor did rely on it. Anyway, the exclusion of homosexuals -- the class of people harmed the most -- does raise perhaps the core reason why so many don't see it this way. Society sees the people harmed -- women, blacks or gays. Not just the motivation, which many do not want to think too much about, including the controversial religious and moral arguments involved. There is a concern of some that resting on animus is a problem, since it makes people feel bad. Some took the DOMA ruling badly on that front, favoring something more phrased in more neutral language. Trying to use foundational arguments involving sex also doesn't "sell" well and only has received limited support in concurring opinions or the like. Pragmatically alone, it can at times seem like forcing a round peg in a square hole -- might work, but not worth the effort.

Not sure about the second concern -- what "real differences" are truly involved here? The capacity to procreate is not appropriate grounds under past cases and in practice -- people who cannot procreate are allowed to marriage. Who is not? A certain subset that wish to marry the "wrong" sex. The importance of procreation ultimately turns on that. I think the motivation behind this harm is a matter of proper sex roles. As I noted at the time, traditional marriage DID reinforce the legal subordination of women and the changing meanings of marriage in large part is a matter of equalization of the sexes. The arguments against SSM repeatedly have a component that stereotypes sex roles, e.g., it is not "natural" for men to be with men or vice versa. Sex stereotyping, not mere "subordination," is a sex discrimination problem. Like use of privacy without equal protection only gave 1/2 the story in the abortion context, this is important.

The legal equality of the sexes in marriage -- contra to "traditional" marriage -- furthers the cause of same sex marriage. See, e.g., the trial ruling in Prop 8. Sexism is a factor in discrimination in this area. Men and women who are not the "appropriate" gender or do things not appropriately masculine or feminine for the particular culture know this rather well. The animus/disgust against gays and lesbians at the very least is partially a matter of sexual roles. It is hard to fully understand the subject without taking that into consideration. The correlation between advances in sexual and sexual orientation equality is also suggestive.

There is no reason to put things all in one box, of course, and some good reasons that the courts (and society) treats sex and sexual orientation discrimination as separate things in various respects. And, basic equality and justice should not be forgotten in the race for nicety of principle. Still, as we examine the complexity of the situation, including the disgust angle, we should also understand the value of each reason used toward those ends.